IN THE HIGH COURT OF AUSTRALIA
BRISBANE REGISTRY
No. B14 of 2014
STEFAN KUCZBORSKI
Plaintiff
BETWEEN:
and
THE STATE OF QUEENSLAND
Defendant
10
SUBMISSIONS ON BEHALF OF THE DEFENDANT
20
I.
CERTIFICATION
1.
These submissions are in a form suitable for publication on the internet.
II.
THE ISSUES
2.
The issues are reflected in questions 1.1 to 1.4 of the further amended special case.
They are:
(a)
whether the Plaintiffhas standing to obtain declaratory relief in respect ofthe
Vicious Lawless Association Disestablishment Act 2013 (Qld) and certain
impugned provisions of the Criminal Code (Qld) and the Bail Act 1980 (Qld);
(b)
whether the relief that the Plaintiff seeks in respect of the VLAD Act and
certain of the impugned provisions would be hypothetical; and
(c)
whether the VLAD Act and the rest of the impugned provisions are invalid
for infringing the principle identified in Kable v Director ofPublic
Prosecutions (NSW) ('the Kable principle'). 1
30
(1996) 189 CLR 51.
40
Date of document:
Filed on behalf of:
8 August 2014
the Defendant, the State of Queensland
Prepared by:
Gregory Richard Cooper
Crown Solicitor
11 Floor State Law Building
50 Ann Street
Brisbane Qld 4000
Tel: (07) 3239 08 85
Fax: (07) 3239 3456
Ref: PL8/ATT110/3108/NAF
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THE REGISTRY BRISBANE
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10
III.
SECTION 78B NOTICES
3.
The Plaintiff has given notice to the Attorneys-General in compliance with s 78B of
the Judiciary Act 1903 (Cth). The Defendant does not consider that any further
notice is required.
IV.
FACTS
4.
The principal facts are set out at paragraphs 1 to 22 of the further amended special
case.Z
5.
The following facts are also relevant.
6.
On 27 September 2013, at approximately 8:30pm, a brawl allegedly involving
several dozen members of the Bandidos and another motorcycle club occurred in
the restaurant precinct ofBroadbeach on the Gold Coast. 3
7.
On 28 September 2013, in the wake of that incident, the Queensland Government
announced its commitment to a range of measures, including the introduction of
tougher laws to tackle criminal gangs and the provision of additional resources for
the Queensland Police Service to carry out a crackdown on such gangs. 4
8.
On 15 October 2013, the Queensland Government introduced into State Parliament
three Bills: the Vicious Lawless Association Disestablishment Bill 2013; the
Criminal Law (Criminal Organisations Disruption) Amendment Bill; and the
Tattoo Parlours Bill.
9.
Each of the three Bills passed in the Legislative Assembly without a division being
required and commenced on 17 October 2013.
V.
APPLICABLE LEGISLATION
10.
The applicable legislation is:
20
30
40
2
4
(a)
Chapter III of the Constitution;
(b)
Vicious Lawless Association Disestablishment Act 2013 (Qld) ('the VLAD
Act');
(c)
Criminal Code (Qld) ('the Criminal Code'), ss 1 (definition of'criminal
organisation'), 60A, 60B, 60C, 72, 92A, 320 and 340;
(d)
Bail Act 1980 (Qld) ('the Bail Act'), s 16; and
Amended Special Case Book at 51-55.
Queensland, Parliamentary Debates, Legislative Assembly, 15 October 2013, 3160 (Hon J P
Bleijie, Attorney-General and Minister for Justice).
Explanatory Note, Vicious Lawless Association Disestablishment Bill2013, p 1.
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-3(e)
10
Liquor Act 1992 (Qld) ('the Liquor Act'), ss 173EA, 173EB, 173EC and
173ED.
VI.
ARGUMENT
A.
Summary
11.
The Plaintiff contends that he has standing to seek declaratory relief in respect of
all the impugned provisions, and that none of the relief that he seeks would be
hypothetical. 5 He further contends that the VLAD Act and certain provisions of the
Criminal Code are invalid because they breach fundamental notions of equality
before the law or equal justice; and, in any case, all of the impugned provisions are
invalid because they require the courts to act as an instrument of the executive and
legislature. 6
12.
In response, the Defendant submits that:
20
(a)
with certain exceptions/ the Plaintiff lacks standing to obtain declaratory
relief in respect of any of the impugned provisions;
(b)
alternatively, the relief that the Plaintiff seeks in respect of those provisions is
hypothetical;
(c)
in any event:
(i)
the Constitution contains no principle of equal justice or general
principle of equality that would apply so as to invalidate the VLAD
Act and provisions of the Criminal Code;
(ii)
neither the provisions of the VLAD Act or the Criminal Code create
any circumstances of unequal justice or offend any general principle
of equality; and
(iii)
none of the impugned provisions impermissibly requires the courts to
act as instruments of the executive or legislature.
30
40
13.
Accordingly, the Plaintiffs challenge should be dismissed.
B.
Preliminary matters
14.
Several points, to be developed more fully in the outline below, should be
highlighted at the outset.
5
Plaintiffs submissions at [74]-[85].
Plaintiffs submissions at [10] and [50]-[71].
Criminal Code, ss 60A, 60B(1) and 60C; Liquor Act, ss 173EB to 173ED.
6
7
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15.
First, many of the Plaintiffs assertions about the operation of the legislation are
revealed to be unfounded when the legislation is properly construed. For example,
and as explained below at paragraphs [25] to [29], and [99] to [I 04] the central
conception of a 'participant in the affairs of a criminal organisation8 or an
association9 is directed only to those who take part in the affairs of an organisation
or association, or seek to do so. The suggestion that the provisions may apply to
innocent spouses and children, or to accountants, is not only farfetched and
fanciful, it is wrong. 10 Similarly, it is erroneous to construe the phrase 'in the
course of participating in the affairs of ... the relevant association' (found in
s 5(1)(c) of the VLAD Act) as having a wide meaning which gives rise to the
irrational results outlined by the Plaintiff.
16.
Secondly, each of the challenged provisions (other than those in the Liquor Act)
provide that it is a defence for a person to demonstrate that the relevant association
or criminal organisation does not have as one of its purposes, the purpose of
engaging in, or conspiring to engage in, criminal activity. 11 In substance, this is no
more than a reversal of the onus of proof. Parliament is undoubtedly competent to
reverse the onus of proof. 12
17.
Put another way, if instead of being a defence, the mirror reverse of this was an
element of the offence, circumstance for refusing bail or a circumstance of
aggravation, as the case may be, no basis for the complaints made on behalf of the
Plaintiff would exist. It must follow, that if Parliament is capable of reversing the
onus of proof, in respect of proceedings otherwise to be determined in the way
disputes in court are ordinarily determined, no question of offending the Kable
principle arises.
18.
Thirdly, what is 'relevant' 13 to why and how 14 individuals and groups of
individuals who engage in criminal activity are to be effectively deterred from
doing so, and punished if they do, are political, value-laden concepts properly for
the legislature and the executive, and ultimately the community that elects them.
8
See Criminal Code, s 60A(3). This definition is relevant to all of the challenged provisions in the
Criminal Code, as well as s 16(3C) of the Bail Act.
See VLAD Act, s 4.
Plaintiff's submissions at [17]-[18].
VLAD Act, s 5(2); Criminal Code, ss 60A(2), 60B(3), 60C(2), 72(3), 92A(4B), 320(3) and 340(1B);
Bail Act s16(3D).
Nicholas v The Queen (1998) 193 CLR 173 at 190 (Brennan CJ), 234-235 (Gunnnow J);
Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12 (Knox CJ,
Gavan Duffy and Starke JJ); Williamson v Ah Oh (1926) 39 CLR 95 at 108 (Isaacs J), 127 (Rich and
Starke JJ); Orient Steam Navigation Co Ltd v Gleeson (1931) 44 CLR 254 at 263 (Dixon J);
Mi/icevic v Campbell (1975) 132 CLR 307 at 316-317, 318-319 (Gibbs and Mason JJ).
Plaintiff's submissions at [60].
Plaintiff's submissions at [20]-[22], [32], [36]-[37] and [41].
10
20
30
9
40
10
II
12
13
14
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C.
The VLAD Act
(i)
The purpose and operation of the VLAD Act
19.
The objects of the VLAD Act include disestablishing 'associations' 15 that
encourage, foster or support persons who commit serious offences, and denying to
persons who commit serious offences the assistance and support gained from
associating with other persons who participate in the affairs of the associations. 16 In
simple terms, the VLAD Act pursues these objects by establishing a sentence
regime whereby a person who is a 'vicious lawless associate' will receive, in
addition to the sentence they would otherwise have received, 15 years'
imprisonment without the possibility of parole. A 'vicious lawless associate' who
was an 'office bearer' of an association will receive an additional25 years' (15 +
10 years) imprisonment without the possibility of parole.
20.
The only circumstance in which a court may reduce the mandatory sentence is if
the offender has offered in writing to cooperate with law enforcement agencies and
the offer has been accepted in writing by the Commissioner of the Police Service. 17
The aim of this exception is to cultivate informants within associations and to deny
individual members the assistance and support usually provided by their
grouping. 18
21.
Section 5 of the VLAD Act defines a 'vicious lawless associate' as a person who:
10
20
(a)
commits a 'declared offence', meaning an offence specified in Schedule I of
the VLAD Act; and
(b)
at the time the offence is committed, or during the course of the commission
of the offence, is a 'participant' 19 in the affairs of an association; and
(c)
committed the act or omission that constitutes the offence for the purposes of,
or in the course of participating in the affairs of, the relevant association.
30
22.
However, a person is not a vicious lawless associate if he or she proves that the
relevant association is not an association that has, as one of its purposes, the
purpose of engaging in, or conspiring to engage in, declared offences. 20
23.
As the extJinsic materials make plain, the intention of s 5 is to 'characterise persons
as vicious lawless associates who belong to associations which encourage, support
15
VLAD Act, s 3 definition of 'association': a corporation, an unincorporated association, a club or
league, or any other group of 3 or more persons by whatever name called, whether associated
formally or informally and whether the group is legal or illegal.
VLAD Act, s I.
VLAD Act, s 9.
Explanatory Note, Vicious Lawless Association Disestablishment Bill20 13, p 2.
VLAD Act, s 4.
VLAD Act, s 5(2).
40
16
17
18
19
20
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or foster the commission of offences and who are, therefore, persons who commit
offences as part of their membership activities' .21
24.
Section 4 of the VLAD Act defines a 'participant' as follows:
For this Act, a person is a participant in the affairs of an association if the person(a)
(whether by words or conduct, or in any other way) asserts, declares or
advertises his or her membership of, or association with, the association; or
(b)
(whether by words or conduct, or in any other way) seeks to be a member of,
or to be associated with, the association; or
(c)
has attended more than 1 meeting or gathering of persons who participate in
the affairs of the association in any way; or
(d)
has taken part on any 1 or more occasions in the affairs of the association in
any other way.
10
25.
In ascertaining the scope of the definition of 'participant', it is necessary to
construe the terms of each subparagraph of s 4 in the context of the VLAD Act as a
whole, and by reference to its evident purposes. 22
20
26.
Here, the statutory context evinces that each subparagraph of the definition of
'participant' is to be understood as directed to those who take part in the affairs of
an association or seek to do so. Subparagraphs (a) and (b) deal respectively with
persons who are members or associates and persons who seek to become members
or associates. Subparagraph (d) speaks of a person who has 'taken part ... in the
affairs of an association in any other way' (emphasis added). These paragraphs, and
in particular the concluding words of s 4(d) , indicate that s 4(c) is not intended to
capture persons who merely attend two or more social or family functions at which
other persons who are 'participants' happen to be present.
30
27.
The relevant statutory context also includes the fact that the VLAD Act is penal. 23
That suggests that, in ascertaining Parliament's intention, 24 weight should be given
to the common law principle that in the case of ambiguity penal statutes should be
construed against extending their application.Z 5
28.
An interpretation of s 4 which focuses upon persons who take part in the affairs of
the association or seek to do so is also consistent with the purposes of the VLAD
Act. The objects of the VLAD Act include to 'disestablish associations that
21
Explanatory Note, Vicious Lawless Association Disestablishment Bill20 13, p 4.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh,
Gummow, Kirby and Hayne JJ); CIC Insurance Ltd v Banks/own Football Club Ltd (1997) 187
CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); AB v Western Australia (201!)
244 CLR 390 at [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
A/can (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [57]
(Hayne, Heydon, Crennan and Kiefel JJ).
Parliament's 'intention' is to be understood as 'a statement of compliance with the rules of
construction, common law and statutory, which have been applied to reach the preferred results and
which are known to parliamentary drafters and the courts': Lacey v Attorney-General (Qld) (201 I)
242 CLR 573 at [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
See Beckwith v R (1976) 135 CLR 569.
22
40
23
24
25
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encourage, foster or support persons who commit serious offences' and to 'deny to
persons who commit serious offences the assistance and support gained from
association with other persons who participate in the affairs of the associations'. 26
Those objects are not furthered by giving the definition of 'participant' a meaning
that would cover persons, such as spouses and children, who neither take part in the
affairs of the association nor seek to do so. Such an interpretation would be
inconsistent not only with now well-settled purposive approach to statutory
interpretation, but also with s 14 of the Acts Interpretation Act 1954 (Qld), which
provides that 'the interpretation that will best achieve the purpose of the Act is to
be preferred to any other interpretation'.
10
29.
To the extent that the Plaintiff submits that the words of s 4(c) should be given their
widest possible meaning/7 his submission should be rejected as inconsistent with
ordinary principles of statutory construction.
30.
If the prosecution wished to rely upon the VLAD Act at all, they would have to
plead the circumstances that attract its operation in the indictment. Subsection
564(2) of the Criminal Code requires all 'circumstances of aggravation' upon
which the prosecution intends to rely to be charged in the indictment. 28 The term
'circumstance of aggravation' means 'any circumstance by reason whereof an
offender is liable to a greater punishment than that to which the offender would be
liable if the offence were committed without the existence of that circumstance'. In
its ordinmy and natural meaning, that term would cover the circumstances that
render a person a 'vicious lawless associate' under the VLAD Act. Subject to an
order under s 614 of the Criminal Code, 29 the jury would therefore have to
determine those circumstances beyond reasonable doubt.
(ii)
Plaintiff lacks standing to obtain declaratory relief regarding the VLAD Act
31.
It is settled that the High Court and other federal courts only have jurisdiction in
respect of 'matters'. 30 That term imports a requirement for a real and justiciable
controversy about an 'immediate right, duty or liability' to be established by
determination of the Court. 31 As Hayne J explained in Re McBain; Ex parte
32
Australian Catholic Bishops Conference:
20
30
At the heart of the constitutional conception of "matter" is a controversy
about rights, duties or liabilities which will, by the application of judicial
power, be quelled. The "controversy" must be real and immediate. That is
why it was held, in In re Judicimy and Navigation Acts, that "matter" means
40
26
27
28
29
30
31
32
VLAD Act, s 2(1)(a) and (c).
CfPlaintiff's submissions at [17] and [18].
R v De Simoni (1981) 147 CLR 383, 392, (Gibbs CJ); Kingswell v The Queen (1985) 159 CLR 264
at 277,280-281, (Gibbs CJ, Wilson and Dawson JJ); R v Meaton (1986) 160 CLR 359 at 363-364
(Gibbs CJ, Wilson and Dawson JJ).
This allows a court to make an order that the trial be by judge alone.
See the Constitution, s 76(i); Judiciary Act 1903 (Cth), s 30(a).
In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
(2002) 209 CLR 372 at [242] (emphasis added).
Document No: 5134124
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meaning of [s 76] unless there is some immediate right, duty or liability to
be established by the determination of the Court". Hypothetical questions
give rise to no matter.
10
32.
Issues of 'standing' are subsumed within the concept of 'matter' .33 Consequently,
unless a plaintiff has standing, there is no 'matter' to found the jurisdiction of the
34
High Court or a federal court.
33.
Standing, however, requires a plaintiff to have a 'special' or 'sufficient interest' in
the subject matter of the action so as to warrant the relief sought. 35 While the
'nature and subject matter of the litigation will dictate what amounts to a special
36
interest', the existence of such a requirement has never been doubted.
34.
In Australian Conservation Foundation v Commonwealth, moreover, Gibbs J, as
37
his Honour then was, observed:
[A]n interest, for present purposes, does not mean a mere intellectual or emotional
concern. A person is not interested ... unless he is likely to gain some advantage, other
than the satisfaction of righting a wrong, upholding a principle or winning a contest, if
his action succeeds or to suffer some disadvantage, other than a sense of grievance or
a debt for costs, if his action fails. A belief, however strongly felt, that the law
generally, or a particular law, should be observed, or that conduct of a particular kind
should be prevented, does not suffice to give its possessor locus standi. If that were
not so, the rule requiring special interest wonld be meaningless.
20
35.
The Plaintiff has no special interest in obtaining a declaration that the VLAD Act is
8
invalid. Contrary to his submissions/ the VLAD Act does not challenge his
'freedom of action'. The Plaintiff remains free to engage in all the activities that he
could have lawfully undertaken before the VLAD Act commenced. Furthermore,
although the Plaintiff is a member of the Brisbane Chapter of the Hells Angels
33
Groome v Tasmania (1997) 191 CLR 119 ('Groome') at 132-133 (Gaudron, McHugh and
Gummow JJ); Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit
Fund Pty Ltd (1998) 194 CLR 247 at 262 (Gaudron, Gummow and Kirby JJ); Truth About
30
34
Motonvays Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200
CLR 591 at 611 [45] (GaudronJ), [103] (Gummow J).
Groome (1997) 191 CLR 119 at 126 (Brennan CJ, Dawson and Toohey JJ): '[A] justiciable
controversy does not arise unless the person who seeks to challenge the validity of the law has a
35
40
36
37
38
sufficient interest to do so.'
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 511 (Aickin J); Re
McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [244] (Hayne J).
See also Robinson v Western Australian Museum (1977) 138 CLR 283 at 327-328 (Mason J);
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 527-528 (Gibbs J);
Onus v Alcoa (1981) 149 CLR 28 at 35-36 (Gibbs CJ), 74 (Brennan J); Groome (1997) 191 CLR
119 at 126-127 (Brennan CJ, Dawson and Toohey JJ). Exceptions exist, however, for relator actions
pursuant to the fiat of an Attorney-General.
Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995)
183 CLR 552 at 558 (Brennan, Dawson, Toohey, Gaudron and McHugh JJ).
(1980) 146 CLR 493 at 530-531. See also at 539 (Stephen J), 548 (Mason J).
Plaintiffs submissions at [78].
Document No: 5134124
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Motorcycle Club, he has not asserted that he intends to perform any act that would
constitute a declared offence, let alone that he would do so for the purposes of the
Club. Nor has he been charged with or convicted of any declared offence. In short,
the VLAD Act does not currently apply to the Plaintiff and on the present facts
there is no reason it ever will. For these reasons, the Plaintiff cannot claim that the
VLAD Act affects him in his person or property or that it will probably do so in the
immediate future. 39 He therefore lacks standing to seek a declaration that the
VLAD Act is invalid.
10
36.
Nothing in Croome v Tasmania 40 supports any different view. In that case, the
plaintiffs had sought declarations that sections of the Criminal Code (Tas)
proscribing sexual relations between men were inconsistent with Commonwealth
legislation. They specifically pleaded that they had engaged in the proscribed
conduct and intended to continue doing so. The State of Tasmania conceded that
the plaintiffs had standing, and the Court found that the concession was rightly
made. Chief Justice Brennan and Dawson and Toohey JJ treated the fact that the
plaintiff had engaged in that conduct as determinative. As their Honours put it:41
The concession of standing was rightly made not by reason of [the plaintiffs']
intention to engage in conduct of the kind pleaded in par 7 (though that intention may
be relevant to the exercise of a discretion to grant or refuse a declaration) but by
reason of their having engaged in such conduct.
20
The plaintiffs plead that they have engaged in conduct which, if the impugned
provisions of the Code were and are operative, renders them liable to prosecution,
conviction and punishment. The fact that the Director of Public Prosecutions does not
propose to prosecute does not remove that liability. Liability to prosecution under the
impugned provisions of the Code will be established ifthe Court were to detennine
the action against the plaintiffs even ifliability to conviction and punishment under
those provisions cannot be detennined by civil process. Controversy as to the
operative effect of the impugned provisions of the Code will be settled and binding on
the parties. The plaintiffs have a sufficient interest to support an action for a
declaration of s I 09 invalidity.
30
37.
Justices Gaudron, McHugh and Gurnmow, on the other hand, reasoned the
plaintiffs had standing to seek declaratory relief because the Criminal Code (Tas)
imposed norms of conduct which overshadowed their personal life in significant
respects. 42
38.
As stated earlier, the Plaintiff here has not claimed that he has engaged in any
conduct to which the VLAD Act applies or that he intends to do so in the future.
The VLAD Act, moreover, does not prevent him from pursuing any lawful activity
that he could have previously undertaken. Since that is so, the contrast with
Croome is stark. The Plaintiffs interest in obtaining declaratory relief is properly
39
Cf Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 at 570 (Latham CJ).
Groome (1997) 191 CLR 119.
Ibid at 127-128.
Ibid at 137-138.
40
40
41
42
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seen as no more than 'the satisfaction of righting a wrong, upholding a principle or
winning a contest'. 43 That is not enough to give him standing to obtain declaratory
relief.
10
39.
Because the Plaintiff lacks standing, there is no 'matter'. His challenge to the
VLAD Act should be dismissed on that basis alone.
(iii)
Relief sought would be hypothetical
40.
Alternatively, the relief sought by the Plaintiff should be refused because it would
be hypothetical. 44 In Re Tooth & Co Ltd,45 a case involving a declaration as to the
lawfulness of future conduct, Brennan J addressed the difference between a
hypothetical and a non-hypothetical question. His Honour said that the difference
was one of degree. 46 He quoted with approval the following passage from the
judgment of the United States Supreme Court in Maryland Casualty Co v Pacific
Coal & Oil Co: 47
The difference between an abstract question and a "controversy" contemplated by the
Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it
would be possible, to fashion a precise test for determining in every case whether
there is such a controversy. Basically, the question in every case is whether the facts
alleged, under all the circumstances, show that there is a substantial controversy,
between parties having adverse legal interests, ofsufficient immediacy and reality to
warrant the issuance of a declaratory judgment.
20
41.
In this case, however, there is no controversy of sufficient immediacy or reality to
warrant relief. For the reasons outlined above in relation to standing,48 the VLAD
Act does not apply to the Plaintiff and it may never do so. That fact demonstrates
that there is no 'immediate' right, duty or liability that would be established by the
49
relief that the Plaintiffseeks. Accordingly, the challenge raised by the Plaintiff is
hypothetical.
43
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 530-531 (Gibbs J).
In addition, the Plaintiff's claim that he has standing is not reconcilable with authorities that have
found that a person's standing is limited to challenging the provisions oflegislation that actually
affect the person or their property, and that the person is not free to challenge other provisions in the
same Act or regulations: see Real Estate Institute ofNew South Wales v Blair (1946) 78 CLR 213 at
227 (Starke J), 228 (Dixon J); Pape v Commissioner of Taxation (2009) 238 CLR 1 at [156]
(Gummow, Crennan and Bell JJ).
A declaration that is hypothetical can give rise to no 'matter': Ainsworth v Criminal Justice
Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); IMF
(Australia) Ltd v Sons o[Gwalia Ltd (Administrator Appointed) ACN 008 994 287 (2004) 211 ALR
231 at [43] (French J).
(1978) 31 FLR314; 19 ALR 191.
Ibid at 31 FLR 333; 19 ALR 208.
312 US 270 (1941) at 273 (emphasis added).
See paragraphs [31] to [39] above.
In Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265.
30
40
44
45
46
47
48
49
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(iv)
The VLAD Act does not infringe equality before the law
42.
The Plaintiff contends that the VLAD Act is invalid because it confers a function
on sentencing courts that is 'repugnant to the judicial process in a fundamental
degree'. 50 He contends that the VLAD Act requires courts to exercise their
sentencing role in breach of the fundamental notion of equality before the law. It
does so, it is asserted, by requiring a court to impose sentences on certain offenders
by reason of who they associate with rather than their own personal and individual
guilt. 51
43.
These submissions should be rejected.
44.
First, the Constitution contains no general principle of equality before the law that
operates to invalidate Commonwealth and State legislation. So much is clear from
Leeth v Commonwealth 52 and Kruger v Commonwealth. 53 In Leeth, the Court
considered a challenge to the validity of s 4(1) of the Commonwealth Prisoners Act
1967 (Cth). That provision picked up and applied to federal offenders State and
Territory laws relating to fixing non-parole periods. As a result, a federal offender
could have been subject to different minimum terms depending on the State or
Territory in which he or she had been sentenced. A majority of the Court54 rejected
a challenge to s 4(1) based on a general principle of equality. Justice Brennan, who
formed part of the majority, said: 55
10
20
Discriminatory laws made under a constitutional head of power, where the
discrimination is supported by the power, must be administered by the courts in which
the judicial power of the Commonwealth is vested. The administration of such laws is
consistent with a proper exercise of the judicial power; indeed, a court in which the
relevant jurisdiction is vested is bound to exercise its jurisdiction in accordance with
such laws.
30
45.
In Kruger, five members of the Court again rejected the notion that the Constitution
contained a general principle oflegal equality. 56 Justice Dawson (with whom
McHugh J agreed57) emphasised, among other things, that such a principle had no
textual basis in the Constitution. 58 Other members of the majority made the same
point. 59
50
Plaintiff's submissions at [IO(a)].
Plaintiff's submissions at [51], [57]-[60].
(1992) 174 CLR 455 ('Leeth').
(1997) 190 CLR I ('Kruger'). See also Bakerv The Queen (2004) 223 CLR513 at[45] (McHugh,
Gummow, Hayne and Heydon J) (on the position of State laws).
Leeth (1992) 174 CLR 455 (Mason CJ, Brennan, Dawson and McHugh JJ) (Deane, Toohey and
Gaudron JJ dissenting).
Ibid at 480.
Kruger (1997) 190 CLR I at 45 (Brennan CJ), 68 (Dawson J), 113-114 (Gaudron J), 142
(McHugh J), 153-155 (Gummow J).
Ibid at 142 (McHugh J).
Ibid at 64-66 (Dawson J).
Ibid at 44-45 (Brennan CJ), 112-113 (Gaudron J), 154-155 (Gummow J).
51
52
40
53
54
55
56
57
58
59
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10
46.
The outcomes in Leeth and Kruger accord with the framers' rejection of a proposal
to include in the Constitution an express guarantee of 'equal protection of the laws'
based largely on the Fourteenth Amendment to the United States Constitution. 60
That rejection cannot be reconciled with the existence of any general principle of
equality before the law.
47.
Accordingly, insofar as the Plaintiffs submissions invoke such a principle, they are
without foundation.
48.
Secondly, Chapter III of the Constitution does not entrench any separate principle
of' equal justice' that mandates identity of outcome in cases that are relevantly
identical and different outcomes in cases that are relevantly different. 61 It is true
that the principle of 'equal justice' has been described as a 'fundamental element in
any rational and fair system of criminal justice' 62 and even as an 'aspect of the rule
of law'. 63 But the principle informs the interpretation of Commonwealth and State
laws; it does not invalidate them. In Kruger, Dawson J (with whom McHugh J
relevantly agreed 64) said: 65
[C]ourts have an obligation to administer justice according to law. No doubt that duty
is to do justice according to valid law, butCh III contains no warrant for regarding a
law as invalid because the substantive rights which it confers or the substantive
obligations which it imposes are conferred or imposed in an unequal fashion.
20
49.
In Green v The Queen, moreover, French CJ, Crennan and Kiefel JJ reasoned: 66
"Equal justice" embodies the norm expressed in the term "equality before the law''. It
is an aspect of the rule of law. It was characterised by Kelsen as "the principle of
legality, of lawfulness, which is immanent in every legal order." It has been called
"the struting point of all other liberties." It applies to the interpretation of statutes and
thereby to the exercise of statutory powers. It requires, so far as the law permits, that
like cases be treated alike. Equal justice according to law also requires, where the law
permits, differential treatment of persons according to differences between them
relevant to the scope, purpose and subject matter of the law."
30
50.
Mandatory sentencing laws exemplifY how legislatures can modifY the principle of
equal justice. Such laws may require a court to impose the same penalty
irrespective of the circumstances of the offence and irrespective of any differences
in culpability between offenders. An indigent person who has committed minor
theft and has pleaded guilty may be subjected to the same term of imprisonment as
a person of wealth who has committed theft on a large scale and has offered no
60
Ibid at 61, 67 (Dawson J); Official Record ofthe Debates ofthe Australasian Federal Convention,
Melbourne, 8 February 1898, Vol IV, pp 664-69!.
Wong v The Queen (2001) 207 CLR 584 at 608 [65] (Gaudron, Gummow and Hayne JJ).
Lowe v The Queen (!984) !54 CLR 606 at 6!0 (Mason J).
Green v I11e Queen (201 !) 244 CLR 462 at 473 [28].
Kruger (!997) !90 CLR I at 142.
Ibid at 68 (Dawson J).
(201 I) 244 CLR 462 at 473 [28] (emphasis added and citations omitted).
40
61
62
63
64
65
66
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-13such plea. Despite these outcomes, however, mandatory sentences do not infringe
Chapter III of the Constitution. 67 That demonstrates that Chapter III does not
operate to invalidate laws merely because they might be thought to depart from the
principle of equal justice.
51.
In addition, a principle of the kind advanced by the Plaintiff would invite courts to
assess the merits of criminal (and perhaps civil) laws. On the Plaintiff's argument,
if a criminal law requires or authorises a court to reach outcomes that do not reflect
'relevant' differences, the judicial process is impermissibly compromised. Since
legislatures necessarily make distinctions in creating offences and determining the
penalties to be imposed for them, however, the consequences of accepting that
argument would be striking. Courts would be drawn into the essentially political,
value-laden task of determining the 'relevant' considerations for settling tariffs to
discourage or punish particular criminal activity. 68 Such a role is inconsistent with
acknowledging that the creation of offences is peculiarly the responsibility of
legislatures, not judges.69
52.
These points can be illustrated by considering circumstances of aggravation.
Legislatures in the United Kingdom, Australia and elsewhere have long prescribed
circumstances that expose an offender to an increased penalty for the same
offence. 70 Depending on the offence in question, these circumstances have included
causing injuries of certain kinds; 71 the commission of an offence with certain
73 h
72
.
.
. •
. ti'ms; 74 the statu s o fth e
1tems;
prevwus
convictions;
t e status o f VIC
perpetrator; 75 and the purpose of committing the offence. 76 If the Plaintiff is correct,
however, the courts would be able to assess whether such circumstances amount to
'relevant' differences justifying the imposition of greater penalties on an offender.
If the court did not regard the difference as 'relevant', the laws would be invalid for
breaching the principle of equal justice. Such judicial second-guessing lacks a
textual basis in the Constitution and does not reconcile with the obligation of courts
67
Palling v Corfie/d (1970) 123 CLR 52; Magaming v The Queen (2013) 87 ALJR 1060
('Magaming').
Attorney-General (NT) v Emmerson (2014) 88 ALJR 522 ('Emmerson') at [85] (French CJ, Hayne,
Crennan, Kiefel, Bell and Keane JJ).
Magaming (2013) 87 ALJR 1060 at [104] (Keane J).
This reflects the proposition that 'Parliament may define the ingredients of offences and the
circumstances to be taken into account in sentencing in whatever way it pleases': Kingswell v The
Queen (1985) !59 CLR 264 at 285 (Mason J). See also at 276 (Gibbs CJ, Wilson and Dawson J) and
Cheng v The Queen (2000) 203 CLR 248 at [157]-[163] (McHugh J).
See, for example, Criminal Code, s 328A(4) (dangerous operation of a motor vehicle causing
grievous bodily harm or death).
See, for example, Criminal Code, s 411(2) (robbery whilst armed with a dangerous or offensive
weapon or instrument).
See, for example, Criminal Code, s 398(11) (stealing after previous conviction).
See, for example, Crimes Act, s 340(a) (assaulting a police officer in certain circumstances); Crimes
(Sentencing) Act 2005 (ACT), s 33(l)(g) (pregnant women).
See, for example, Criminal Code, s 398(5), (6), (7), (8) and (10) (stealing by public servants, clerks
or servants, directors, agents or tenants and lodgers respectively).
See, for example, Criminal Code, s 408A(IA) (unlawful use of a motor vehicle for the purpose of
facilitating the commission of an indictable offence).
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68
69
70
71
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73
74
75
76
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to apply the law, regardless of whether they regard it as unjust, harsh or unfair. 77 As
Brennan CJ explained in Nicholas v The Queen: 78
It is the faithful adherence of the courts to the laws enacted by the Parliament,
however undesirable the courts may think them to be, which is the guarantee of public
confidence in the integrity of the judicial process and the protection of the courts'
repute as the administrator of criminal justice.
53.
Thirdly, in any event, the VLAD Act would not infringe any general principle of
equality before the law or any principle of equal justice. The Plaintiff's basic
complaint is that the VLAD Act requires the imposition of different sentences for
the same crime. 79 There is, however, no reason why the circumstances of
aggravation selected by the VLAD Act are 'irrelevant' to the penalties that it
imposes. Legislatures are entitled to take action to suppress or disestablish
associations that engage in criminal activity. That is a legitimate objective.
Legislatures may therefore consider robbery by members of an organised crime
group, for the purposes of that group, as meriting greater punishment than robbery
by an individual. The same applies to the commission of other declared offences
such as rape, kidnapping and the unlawful supply of weapons. By requiring
declared offences committed for the purposes of a criminal association or in the
course of participating in such an association to be punished more severely, the
legislature has drawn a distinction that is appropriate and adapted to the attainment
of a legitimate objective. 80 That is enough to satisfY any general principle of
equality before the law and any principle of equal justice. 81
54.
None of the Plaintiff's examples supports a different view. In particular, his
example of the ingenue who happens to be in possession of carmabis in her pocket
while attending her first gathering of members of a club that, unbeknownst to her,
has as a criminal purpose is not only artificial and farfetched but wrong. 82 It is
wrong to approach the validity of the VLAD Act by reference to such examples. 83
55.
In any event, that example does not reflect the true operation of the VLAD Act.
Paragraph 5(1)(c) of the VLAD Act requires the prosecution to prove that the
participant committed the declared offence 'for the purposes of... participating in
the affairs of the association' or 'in the course of participating in the affairs of the
77
Magaming (20!3) 87 ALJR 1060 at [106]-[108] (Keane J); Emmerson (2014) 88 ALJR 522 at [85]
(French CJ, Hayne, Crennan, Kiefe1, Bell and Keane JJ).
(1998) 193 CLR 173 at [37].
Plaintiff's submissions at [60].
The same is true of the penalty for vicious lawless associates who are 'office bearers' in an
association. Their role in an association that has at its purposes engaging in criminal activity makes
it appropriate that crimes they commit for the purpose of the association or while participating in the
affairs of the association attract a heavier penalty.
Street v Queensland Bar Association (1989) 168 CLR 461 at 510-511 (Brennan J), 548 (Dawson J),
571-573 (Gaudron J), 582 (McHugh J); Cameron v The Queen (2002) 209 CLR 339 at 343-344 [15]
(Gummow, Hayne and Callinan JJ); Austin v Commonwealth (2003) 215 CLR 185 at 247 [118]
(Gaudron, Gummow and Callinan JJ) (explaining the essence of the notion of discrimination).
See Plaintiff's submissions at [34]-[37].
Wainohu v New South Wales (2011) 243 CLR 181 at [152]-[153] (Heydon J).
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20
30
78
79
40
80
81
82
83
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-15association'. The two situations are equivalent. As that is so, proof that the offence
was committed 'in the course of participating in the affairs of the association'
requires more than a mere temporal or coincidental connection between the
commission of the offence and the affairs of the association; it suggests a
substantial connection between those affairs and the commission of the offence.
The term 'affairs of the association', which connotes the 'business' of the
association, reinforces that construction ofs 5(1)(c). The construction also reflects
the penal nature of the VLAD Act, the impact that it has on a person's liberty and
the objects of the legislation referred to above. It is, thus, inconsistent with the
Plaintiffs example.
10
56.
Realistic illustrations of the application of the VLAD Act in fact demonstrate its
policy rationale. Take for example the situation of a group of persons with, among
others matters, a common interest in the sale for profit of narcotics. A member of
the group is standing trial on serious drugs charges. During the trial another
member approaches a juror on his or her way home and makes threats to the family
of the juror in the event of a conviction, contrary to s 119B of the Criminal Code,
and a declared offence. The threat is made for the purposes of the group, which
include the commission of other declared offences and evading the detection and
punishment of those offences. The fact that the s 119B offence occurs with the
support and encouragement of the club heightens the gravity of the threat and the
offending, and accordingly attracts the application of the VLAD Act. VLAD in
those circumstance represents a legislative response that is reasonably adapted to
discouraging a serious threat to the community.
57.
Finally, the Plaintiff's reliance on South Australia v Totani 84 is misplaced. In that
case, s 10 of the Serious and Organised Crime (Control) Act 2008 (SA) ('the SOC
Act') provided for the State Attorney-General, on application by the Commissioner
of Police, to make a declaration in relation to an organisation if satisfied that
members of the organisation associated for the purpose of organising, planning,
facilitating, supporting or engaging in serious criminal activity. 85 Subsection 14(1)
then provided that, on application by the Commissioner of Police, the Magistrates
Court of South Australia had to make a control order against a person if satisfied
that the person was a member of a declared organisation. 86 It was an offence to
contravene a control order. 87
58.
The vice of s 14(1) of the SOC Act, which led to its invalidity, was that the
Magistrates Court's role was limited to determining whether a person nominated by
the executive was a member of a declared organisation. 88 If the Court found that the
person was, it had to make the control order without determining what that person
had done or would do, in circumstances where contravention of the order was an
84
South Australia v Totani (20 10) 242 CLR 1 (' Totani').
Assistant Commissioner Condon v Pompano Pty Ltd (20 13) 87 ALJR 458 ('Pompano') at [132]
(Hayne, Crennan, Kiefe1 and Bell JJ).
Ibid at [132] (Hayne, Crennan, Kiefe1 and Bell JJ).
Totani (2010) 242 CLR 1 at [225](e) (Hayne J)).
Pompano (2013) 87 ALJR 458 at [133] (Hayne, Crennan, Kiefe1 and Bell JJ).
20
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86
87
88
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offence and there was no pre-existing restriction on the person's ability to
associate. 89 In other words, the Magistrates Court was no more than an instrument
of the executive for preventing certain persons from associating. 90
59.
By contrast, the VLAD Act only allows for the imposition of a heavier sentence if a
court is satisfied that the offender committed certain offences for the purposes of
the association or in the course of participating in the affairs of the association.
Punishment, in short, follows judicial findings about the person's criminal acts and
91
the circumstances in which those acts were done. The VLAD Act consequently
does not share the vice of the legislation invalidated in Totani.
(v)
VLAD Act does not make the court an instrument of the legislature or the
executive
60.
The Plaintiff also contends that the VLAD Act is invalid because it requires courts
to act as an instrument of the executive or legislature. He contends that the object of
the VLAD Act and other legislation was to destroy criminal associations, but the
legislature did not disestablish any association directly. 92 Instead, it required courts
to impose significant terms of imprisonment on vicious lawless associates. In doing
so, it enlisted courts to achieve a policy outcome in an impermissible manner
instead of performing their ordinary function of applying the law. 93
61.
These submissions ignore the fact that a court applying the VLAD Act follows the
ordinary judicial process. The sentencing court must conduct its proceedings in
open court; it is obliged to afford procedural faimess; 94 and it exercises judicial
power by applying the law to the facts. 95 The task that it performs is essentially the
same as that performed by courts whenever they determine circumstances of
aggravation. The requirement to impose particular sentences if certain facts are
found, moreover, is an example of a mandatory sentence--something that does not,
without more, breach Chapter III of the Constitution. 96 Since the VLAD Act does
not require departure from the ordinary judicial process, there is no basis for
89
Totani (2010) 242 CLR I at [82] (French CJ), [139]-[142] (Gummow J), [225]-[226] (Hayne J),
[434]-[436] (Crennan and Bell JJ), [469]-470], [478]-[481] (Kiefel J).
Pompano (2013) 87 ALJR 458 at [133] (Hayne, Crennan, K.iefel and Bell JJ).
It should be recalled that under s 5(2) of the VLAD Act, a person can establish that the association
does not have, as one of its purposes, engaging in or conspiring to engage in declared offences.
Plaintiff's submissions at [69]-[70].
Plaintiff's submissions at [71].
By giving the function of sentencing under the VLAD Act to a court, the legislature must be taken
to have accepted that it will be exercised in accordance with usual judicial standards and processes,
including the rules of procedural fairness and the open court principle: see Electric Light and Power
Supply (1956) 94 CLR 554 at 560; Mansfield v Department ofPublic Prosecutions ('NA) (2006)
226 CLR 486 at 491-492 [7]-[9]; International Finance Trust (2009) 240 CLR 319 at 377-378 [134]
(Hayne, Crennan and Kiefel JJ).
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374
(Kitto J).
Palling v Corfield (1970) 123 CLR 52; Magaming (2013) 87 ALJR 1060.
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90
91
92
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93
94
95
96
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considering that it requires courts to act as instruments of the executive or the
legislature. 97
62.
The Plaintiff's submissions assume that Chapter III of the Constitution puts
legislatures to an election: they must either destroy criminal associations by
proscribing membership or leave participants in such associations to be dealt with
under existing criminal laws. Nothing in the text of Chapter III or the concept of
judicial power, however, warrants that view. Legislatures in Australia, like
legislatures in other countries, remain free to pursue the objective of suppressing
criminal organisations and their activities without proscription. 98 If they choose to
require harsher sentences for offences committed by participants for the purposes
of criminal associations, or as part of the activities of such associations, they do not
thereby transfmm the courts that apply those laws into instruments of the executive.
To suggest otherwise is fallacious.
63.
For these reasons, the VLAD Act does not infringe the Kable principle. The
Plaintiff's challenge to the Act should therefore be dismissed.
10
20
D.
Circumstances of Aggravation under the Criminal Code
(i)
The purpose and operation of the Criminal Code, sub-sections 72(2)-(4),
92(A)-(4A) and (5), 320(2)-(4) and 340{1A), (lB) and (3)
64.
The background circumstances leading to the passing of these provisions by the
Queensland Parliament is referred to earlier in these submissions. 99
65.
The critical feature and rationale explaining the enactment of these provisions is
that they apply only to participants in criminal organisations. The provisions are
directed to individuals who commit criminal offences while enjoying the support
and encouragement of a criminal group. The provisions are aimed at the illegal
conduct of the criminal gang participant and are designed to promote community
safety and protection from such offenders. 100
66.
The provisions are directed to discouraging and deterring those who choose to
participate in a criminal organisation from committing the nominated offences.
97
Totani (2010) 242 CLR I at [428], [430], [436] (Crennan and Bell JJ); Emmerson (2014) 88 ALJR
522 at [43]-[45] (French CJ, Hayne, Crennan, K.iefel, Bell and Keane JJ).
For examples of foreign laws that target activities of members or associates of criminal
organisations, see ss 467.1, 467.11,467.12 and 467.13 of the Criminal Code (Can). For
consideration of these provisions, seeR v Pereira (2008) BCSC 184 at [151]; R v Venneri [2012]
2 SCR211.
See paragraphs [4]-[9] above.
Explanatory Note, Criminal Law (Criminal Organisations Disruption) Amendment Bill 2013, p 5.
30
40
98
99
100
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(ii)
The Plaintiff lacks standing to obtain declat·atory relief regarding the
provisions of the Criminal Code
67.
Articulated earlier in the submissions 101 are the reasons that the Plaintifflacks
standing to obtain declaratory relief regarding these provisions.
68.
The Plaintiff is not charged with a relevant offence. He has not pleaded facts
indicating an intention to engage in any conduct which would make him susceptible
to prosecution or conviction.
69.
Unless and until the Plaintiff engages in conduct for which he could be charged
with an offence under these provisions he has no special interest in obtaining a
declaration of invalidity.
(iii)
The challenged Criminal Code provisions do not infringe equality before the
law
70.
As set out earlier in these submissions, 102 the Constitution contains no general
principle of equality before the law; Chapter III does not entrench any separate
principle of'equaljustice'; and mandatory sentencing laws are clear examples of
how the legislature can modify the principle of equal justice.
71.
It is open to the legislature to impose increased maximum sentences and mandatory
minimum sentences in pursuit of policy objectives. They are 'known forms of
legislative prescription of penalty for crime' . 103
72.
In Magaming v The Queen, Keane J reasoned: 104
10
20
The enactment of sentences by the legislature, whether as maxima or minima,
involves the resolution of broad issues of policy by the exercise oflegislative
power. A sentence enacted by the legislature reflects policy-driven assessments of
the desirability of the ends pursued by the legislation, and of the means by which
those ends might be achieved. It is distinctly the province of the legislature to
gauge the seriousness of what is seen as an undesirable activity affecting the peace,
order and good government of the Commonwealth and the soundness of a view
that condign punishment is called for to suppress that activity, and to determine
whether a level of punishment should be enacted as a ceiling or a floor.
30
In laying down the norms of conduct which give effect to those assessments, the
legislature may decide that an offence is so serious that consideration of the
particular circumstances of the offence and the personal circumstances of the
offender should not mitigate the minimum punishment thought to be appropriate to
achieve the legislature's objectives, whatever they may be.
40
101
102
103
104
See paragraphs [31]-[39] above.
See paragraphs [44]-[52] above.
Magaming (2013) 87 ALJR 1060 at [48] (French CJ, Hayne, Crennan, Kiefe1 and Bell JJ).
Magaming (2013) 87 ALJR 1060 at [105]-[106] (Keane J).
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(iv)
The Criminal Code provisions do not make the court an instrument of the
legislature or the executive
73.
The submissions below concerning why s 60A does not offend the Kable
principle, 105 including the reference at paragraph 105 below to Heydon J' s reasons
in Public Service Association and Professional Officers' Association Amalgamated
ofNSW v Director ofPublic Employment 106 apply equally to the Plaintiff's
submissions 107 concerning the so-called 'special sentences'.
74.
The starting point for consideration is that the challenged Criminal Code provisions
establish offences which the prosecution carries the burden of proving beyond
reasonable doubt.
75.
In the case of the offence of affray 108 the circumstance of aggravation that a
defendant is a participant in a criminal organisation increases the maximum penalty
from one years' imprisonment to seven years' imprisonment and imposes a
mandatory minimum penalty of six months' imprisonment to be served wholly in a
corrective services facility. 109
76.
The offence of misconduct in public office 110 provides for a circumstance of
aggravation which increases from seven years' imprisonment to fourteen years'
imprisonment, the sentence for a defendant who was a participant in a criminal
organisation. 111
77.
The offence of doing grievous bodily harm provides for a circumstance of
aggravation which alleges that where a defendant is a participant in a criminal
organisation and unlawfully does grievous bodily harm to a police officer acting in
the execution of his duty, a mandatory minimum sentence of one year
imprisonment served wholly within a corrective services facility must be
.
d. 113
Impose
78.
The serious assault provisions 114 include a circumstance of aggravation which
provides that where a defendant is a participant in a criminal organisation and
assaults a police officer in any of the circumstances set out ins 320(a), a defendant
is liable to a maximum penalty of fourteen years' imprisonment and a mandatory
105
See paragraphs [100]-[120] below.
(2012) 87 ALJR 162 at[69].
Plaintiffs submissions at [15].
Criminal Code, s 72.
Ibid, s 72(2).
Ibid, s 92A.
Ibid, s 92(A)4A.
Ibid, s 320.
Ibid, s 320(2).
Ibid, s 340.
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106
107
108
109
110
Ill
112
Ill
114
112
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minimum sentence of one year imprisonment to be served wholly within a
corrective services facility. 115
10
79.
The Plaintiff describes the sentencing procedure which is activated upon any
conviction for these offences as a 'special penalty regime' . 116 The submission is
respectfully in error. What follows demonstrates that the challenged provisions
operate in a conventional manner and they do not undermine accepted sentencing
processes.
80.
Sections 1 and 564(2) of the Criminal Code require all circumstances of
aggravation which the prosecution intends to rely upon to be charged in the
indictrnent. 117 On a proper construction, the Criminal Code makes the facts
establishing the relevant circumstance of aggravation of being a participant in a
criminal organisation relevant to both conviction and sentence.
81.
Section 564(2) of the Criminal Code exemplifies the 'underlying principle' that an
'offender's liability to punishment or his [or her]liability to a particular maximum
penalty depends upon the facts determined by his [or her] plea of guilty or the
verdict of the jury' . 118 The corollary is that upon any conviction for an offence
against the challenged provisions, an offender will be sentenced for a crime which
he or she is charged with. 119
82.
The circumstances of aggravation have relevance beyond the exercise of a
sentencing judge's discretion. The prosecution must prove, and any jury be
satisfied, beyond reasonable doubt that a defendant is a participant in a criminal
organisation 120 for a sentencing judge to impose any increased maximum penalty,
or mandatory minimum as the case may be.
83.
The prosecution of persons charged under the challenged provisions do not engage
any extraordinary processes. The Court performs its usual judicial function (in
overseeing the trial and sentencing an offender upon conviction) which is
independent of the Executive in fact and appearance. The jury performs its
conventional and independent curial function. A further impediment to the Court
doing the executive's 'bidding' is via the recognised primacy of the prosecutor's
115
Ibid, s 340(JA).
Plaintiff's submissions at [22].
R v De Simoni (1981) 147 CLR 383 at 392, (Gibbs CJ); Kingswell v The Queen (1985) 159 CLR
264 at277, 280-281, (Gibbs CJ, Wilson and DawsonJJ); The Queen v Meaton (1986) 160 CLR 359
at 363-364 (Gibbs CJ, Wilson and Dawson JJ).
Kingswell v The Queen (1985) !59 CLR 264 at 290-1 (Brennan J).
R v Olbrich (1999) 199 CLR 270 at [18] (Gleeson CJ, Gaudron, Hayne and Callinan JJ), [18], [53]
(Kirby J) (dissenting). Also note Kirby J's reference in Weininger v The Queen (2003) 212 CLR
629 at [75] to this 'fundamental principle'.
'Participant' is defmed ins 60A. Also note the terms of s 72(2) of the Criminal Code 'on
conviction'.
20
30
116
40
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118
119
120
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ro1e 121 and the exercise of prosecutorial discretion in, relevantly, framing the
charges which are to be prefelTed against an accused. 122
84.
Further, the challenged provisions do not encroach upon an accused's right to a trial
by jury. A judge alone does not determine an accused's criminal guilt or
innocence. 123 A convicted offender is sentenced on the basis of the jury's findings
which are based upon evidence led in open court. 124 The sentencing judge has no
role in the relevant fact finding exercise but the judge is bound by 'the manner in
which the jury, by verdict' decided the issue of the accused's participation in the
criminal organisation for the purposes of imposing sentence 12 and the judge cannot
form a view of the facts which are in conflict with jury's verdict. 126
85.
Consistently, a sentencing judge would be precluded from taking into account an
offender's participation in a criminal organisation (which would be necessarily
adverse to the offender's interests) unless the prosecution had established those
facts beyond reasonable doubt. 127
86.
The defendant may challenge the prosecution's proof in the ordinary course,
without necessarily going into evidence.
87.
Furthermore, a defendant charged in relation to any of these provisions has
available a statutorily prescribed defence which is made out if the accused proves,
on the balance of probabilities, 128 that the criminal organisation is not an
organisation that has, as 1 of its ~urposes, the purpose of engaging in, or conspiring
to engage in, criminal activity. 12
10
20
Distinguishing Totani
30
88.
The Plaintiff compares the challenged provisions to those considered in Totani. The
challenged provisions are radically different from the invalids 14(1) of the SOC
Act.
121
Maxwell v The Queen (1996) 184 CLR 501.
Cheung v The Queen (2001) 209 CLR I at [47] {Gleeson, Gummow and Hayne JJ}, Magaming
(2013) 87 ALJR 1060 at [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ)
See, for example, Kingswell v The Queen (!985) 159 CLR 264 at 312 (Deane J). Trial by jury is, of
course, subject to an order being made under s 614 of the Criminal Code.
See paragraph [61] and the references in footnote 94 above.
Cheung v The Queen (2001) 209 CLR I at [4]-[5], [9] (Gleeson CJ, Gummow and Hayne JJ).
Ibid at 12 [12] (Gleeson CJ, Gummow and Hayne JJ), referring to Savvas v The Queen {1995) 183
CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [76]-[77] (Gaudron J), referring to
R v De Simoni {1981) 147 CLR 383 at 295-6 (Wilson J) and at 406 (Brennan J); [163] and [170]
(Callinan J), referring toR v Isaacs (1997) 41 NSWLR 474 at 377-8.
R v Olbrich {1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ}, confirming
the reasoning in R v Storey [1998]1 VR 359 at 369 (Winneke P, Brooking and Hayne JJA and
Southwell AJA, Callaway JA dissenting); Cheung v The Queen (2001) 209 CLR I at [164] (Callinan
122
123
124
125
40
126
127
J).
128
129
R v Carr-Brian/ [1943] KB 607; Sodeman v R (!936) 55 CLR 192.
Criminal Code, ss 72(3), 92A4{B}, 320(3) and 340(IB).
Document No: 5134124
-22-
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20
89.
As explained above at paragraphs [57] above and [107] below, section 14(1) was
invalid because the Magistrates Court was required to make an order based upon an
Executive determination without engaging in any substantive adjudicative process.
90.
By contrast, the challenged Criminal Code provisions require the court (constituted
by judge and jury) to engage in its usual curial role in determining an accused's
guilt or innocence.
91.
There is nothing constitutionally invalid in a court, on convicting an offender,
obeying the statute and imposing a mandatory penalty. 130
92.
The court's processes do not 'substantially impai[r] the court's institutional
integrity' such that they are 'therefore incompatible with that court's role as a
repository of federal jurisdiction ... ' . 131
93.
For the above reasons, the challenged provisions of Criminal Code do not infringe
the Kable principle. The Plaintiffs challenge to these provisions should faiL
E.
New Offences
(i)
The purpose and operation of the Criminal Code, s 60A
94.
Section 60A(1) of the Criminal Code makes it an offence for a person who is a
participant in a criminal organisation to be knowingly present in a public place with
two or more other participants in a criminal organisation.
95.
The Plaintiff appears to challenge the validity of s 60A (and ss 60B and 60C) only
insofar as it applies by reference to paragragh (c) of the definition of' criminal
organisation' ins 1 of the Criminal Code. 13 That paragraph provides that 'criminal
organisation' includes 'an entity declared under a regulation to be a criminal
organisation'.
96.
In a prosecution for an offence against s 60A(1), the prosecution must prove,
beyond reasonable doubt, that:
30
(a) the defendant was a participant in a criminal organisation at the time of the
relevant conduct;
(b) the defendant was knowingly present in a public place with two or more
other persons;
40
(c) each of those two other persons was a participant in a criminal organisation
at the time of the relevant conduct; and
130
131
132
Palling v Corfield (1970) 123 CLR 52 at 58 (Barwick CJ), cited with approval in Magaming (2013)
87 ALJR 1060 at [27] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). Also see paragraph [61]
above.
Emmerson (20 14) 88 ALJR 522 at [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Plaintiffs submissions at [68](b).
Document No: 5134124
-23(d) the defendant knew that each of the two other persons was a participant in a
criminal organisation.
97.
It is a defence for the defendant to prove, on the balance of probabilities, 133 that the
criminal organisation is not an organisation that has, as one of its purposes, the
purpose of engaging in, or conspiring to engage in, criminal activity (s 60A(2)). In
accordance with s 3 5(1 )(a) of the Acts Interpretation Act 1954 (Qld), the reference
to 'criminal organisation' ins 60A(2) is a reference to that organisation to the
extent it operates in Queensland.
98.
Although no reference to the defence is made in the Plaintiffs submissions, it is
essential to a proper understanding the operation of s 60A. The defence
demonstrates that in substance the provision is narrowly directed at participants in
organisations the purposes of which include engaging in, or conspiring to engage
in, criminal activity. Those organisations (such as the Hells Angels) identified in
the Criminal Code (Criminal Organisations) Regulation 2013 are rebuttably
presumed to have such a purpose. There is no constitutional obstacle that the onus
of proving that an organisation does not have such a purpose is placed on the
defendant. 134
99.
Also essential to a proper understanding of the operation of s 60A is the
construction ofthe definition of'participant' ins 60A(3). That definition is
substantially the same as the definition of 'participant' in the VLAD Act. For the
reasons given above at paragraph [25] to [27], understood in its context, each
paragraph of the definition of 'participant' ins 60A(3) is properly construed as
directed only to those who take part in the affairs of an organisation or who seek to
do so.
I 00.
That interpretation is consistent with the purposes of s 60A and the other provisions
of the Criminal Code which operate by reference to the definition ins 60A(3).
Those purposes, which reflect the objects ins 2 of the VLAD Act, include tackling
criminal gangs by 'target[ing] only those individuals who offend while enjoying the
support and encouragement of the criminal group' . 135
I 01.
Moreover, the definition of 'participant' ins 60A(3) must be understood in the
context of s 60A(l ), a penal provision which undoubtedly restricts the common law
133
Sodeman v The King (1936) 55 CLR 192; Momcilovic v The Queen (2011) 245 CLR 1 at 668
(Bell J); Braysich v The Queen (2011) 243 CLR 434 at [32] (French CJ, Crennan and Kiefel JJ).
Nicholas v The Queen (1998) 193 CLR 173 at 190 (Brennan CJ), 234-235 (Gummow J);
Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12 (Knox CJ,
Gavan Duffy and Starke JJ); Williamson v Ah On (1926) 39 CLR 95 at 108 (Isaacs J), 127 (Rich and
Starke JJ); Orient Steam Navigation Co Ltd v Gleeson (1931) 44 CLR 254 at 263 (Dixon J);
Milicevic v Campbell (1975) 132 CLR 307 at 316-317, 318-319 (Gibbs and Mason JJ).
See Explanatory Note, Criminal Law (Criminal Organisations Disruption) Amendment Bi1120 13,
p 5.
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40
134
135
Document No: 5134124
-24freedom of assembly. 136 Its interpretation therefore attracts the principle of
legality. 137
102.
Statutory context, purpose and common law canons of construction therefore
support the view that subparagraph (d) of the definition of'participant' (which
refers to persons who attend 'more than 1 meeting or gathering of persons who
participate in the affairs of the organisation in any way') is properly construed as
having a purposive element. In other words, simply attending two gatherings at
which there happen to be other persons who participate in the affairs of an
organisation is not sufficient to make one a 'participant' if the gatherings are
unconnected to the affairs of the organisation. As subparagraph (e) suggests,
subparagraph (d) is directed to those who, through attending gatherings, themselves
participate in the affairs of the organisation.
103.
Accordingly, the Plaintiffs contention that 'to be a participant, it is unnecessary for
a person to have ever participated or sought to participate in the criminal
organisation' 138 should be rejected. Similarly, his conclusion that s 60A(3)(d)
'presumably' extends to the spouses and children of members of criminal
organisations is without foundation.
104.
For the same reasons, the definition of 'participant' does not capture professional
service providers, such as accountants, who merely deal with an organisation. That
follows from the terms of the definition, which, properly construed, are directed
only at those who take part in the organisation's affairs, or who seek to do so. The
express exclusion oflawyers acting in a professional capacity does not suggest any
other result. 139
(ii)
Section 60A does not offend the Kable principle
105.
The Plaintiff attacks s 60A on one ground: it breaches the Kable principle by
requiring the court 'in appearance or reality, to act as an instrument of the
executive'. The Plaintiff submits that the 'intended legal and practical operation'
of s 60A (along with other impugned provisions) 'is to enlist the courts to achieve a
particular policy objective of the executive (destruction of certain organisations) in
a constitutionally impermissible manner rather than to perform their ordinary
function of 'applying the law'.' 140
136
Freedom of assembly was recognised as a common law right attracting the principle of legality in
Totani (2010) 242 CLR I at [30] (French CJ).
As to which, seeMomcilovic v The Queen (2011) 245 CLR I at [43] (French CJ);X7v Australian
Crime Commission (2013) 248 CLR 92 at [86]-[87] (Hayne and Bell JJ), [158] (Kiefel J); Lee v N<!".v
South Wales Crime Commission (2013) 87 ALJR 1082 at [307]-[314] (Gageler and Keane JJ).
Plaintiffs submissions at [17].
As explained by the Attorney-General during debate the express exclusion of lawyers was included
at the suggestion of the opposition for the avoidance of doubt. Queensland, Parliamentary Debates,
Legislative Assembly, 15 October 2013, 3258 (Hon J P Bleijie, Attorney-General and Minister for
Justice); See also for comparison Heatley v Tasmanian Racing and Gaming Commission (1977) 137
CLR487 at 513 (AickinJ).
Plaintiffs submissions at [71].
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20
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40
137
138
139
140
Document No: 5134124
-25-
106.
Respectfully, this submission has no substance.
107.
Without expressly saying so, the Plaintiff appears to base his submission on
Totani. 141 The statute found invalid in that case was, like s 60A, intended to
prevent criminal conduct by restricting the freedom of association of persons
connected with criminal organisations. 142 The vice of the SOC Act was not the
policy to which it gave effect. As explained above, the vice of the SOC Act was
that it enlisted the Magistrates Court of South Australia 'to implement decisions of
the executive in a manner incompatible with that Court's institutional integrity' . 143
I 08.
Section 60A is very different from the legislative regime found invalid in Totani.
109.
First, unlike the s 14(1) of the SOC Act, s 60A does not give to the court the task of
creating 'new norms of behaviour' for particular persons identified by the
executive. 144 Section 60A itself creates a norm ofbehaviour. The restrictions it
imposes are transparently the result oflegislative action. Section 60A does not
seek to borrow the reputation of the judicial branch nor 'cloak' the work of the
legislature 'in the neutral colours of judicial action' .145 The section simply creates
an offence. 146 The court's task is the ordinary task of determining whether the
prosecution has proved the elements of the offence beyond reasonable doubt; and
whether, if raised, the defendant has proved the defence on the balance of
probabilities.
110.
Secondly, s 60A does not seek impermissibly to enlist the court in the
'implementation oflegislative policy' . 147 Like all legislation, s 60A reflects
policies attributable to the legislature, and like most legislation, s 60A reflects
148
As Heydon J said in Public Service
policies attributable to the executive.
Association and Professional Officers' Association Amalgamated ofNSW v
149
Director ofPublic Employment:
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20
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In a system of responsible government, all legislation enacted substantially
in conformity with a Bill presented to the legislature by the Executive may
be said to "give effect to ... government policy dictated by the executive".
Most legislation is of that kind . . . And when legislation enacted in
conformity with the will of the Executive contains regulation-making power,
141
142
40
143
144
145
146
147
148
149
Totani (2010) 242 CLR I.
Totani (2010) 242 CLR I at [41] (French CJ).
Totani (2010) 242 CLR I at [82] (French CJ).
Compare Totani (2010) 242 CLR I at [236] (Hayne J); see also [82] (French CJ) and [139]
(GummowJ).
Compare Totani (2010) 242 CLR I at [82] (French CJ); [142] (Gummow J); [479] (Kiefe1 J); Kable
(1996) 189 CLR51 at 133 (Gummow J).
Compare Totani (2010) 242 CLR I at [467] (Kiefe1 J).
Compare Totani (2010) 242 CLR I at [149] (Gummow J); [436] (Crennan and Bell JJ).
Compare Public Service Association and Professional Officers' Association Amalgamated of NSW v
Director ofPublic Employment (2012) 87 ALJR 162 at [44] (French CJ).
(2012) 87 ALJR 162 at [69] (citation omitted).
Document No: 5134124
-26the regulations, which are themselves a form of legislation and which are
subject to parliamentary scrutiny and the power of disallowance, may
equally be said to "give effect to ... government policy dictated by the
executive". Once that "policy" is reflected in statutes and regulations, it is
binding as a matter of law. The judicial branch of government declares and
enforces the law. In that sense, the judiciary gives effect to government
policy dictated by the Executive. If the Kable statements invalidate
legislation giving effect to government policy on that ground alone, they are
wrong for that reason. They do not.
10
111.
Requiring a court to try a person for an offence against a statutory provision which
reflects government policy cannot sensibly be said to enlist the court in the
implementation of that policy, or to compromise the court's decisional
independence and institutional integrity.
112.
Thirdly, unlike the SOC Act which 'prevented the Magistrates Court on as 14~1)
application from canvassing in any way the validity of as 10(1) declaration', 15
s 60A(2) allows a defendant to challenge directly the basis of a legislative or
executive declaration of an entity as a 'criminal organisation'. The defendant will
have a complete defence if he or she can show that the organisation in which he or
she is a participant (or, if it is different, an organisation in which one or both of the
other persons present at the time is a participant) does not have the purpose of
engaging in, or conspiring to engage in, criminal activity.
113.
In the event that an organisation does not have those purposes, then proof of the
defence would be relatively easy. Evidence of the constitutional framework of the
organisation, recent minutes of meetings, what the organisation does and the fact
that the preponderance of its members had not been charged with or convicted of
serious criminal offences would be likely to be sufficient, indeed overwhelming,
proof, on the balance of probabilities, of this defence. Of course, any evidence led
by the prosecution to negative the defence could not be withheld from disclosure to
the defendant. 151
114.
The defence ins 60A(2) allows the court to assess for itself whether the purposes of
the organisation include engaging in, or conspiring to engage in, criminal activity.
As noted above, there is no constitutional difficulty with the fact that s 60A(2)
places the onus of proof of one element of the offence on the defendant. 152 It
ISO
Totani (2010) 242 CLR I at [127] (Gummow J).
In this respect the defence is fundamentally different from the procedure for judicial review for
jurisdictional error of an Attorney-General's declaration under s 10(1) of the SOC Act, which was
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Ill
!52
likely to encounter 'very large' forensic difficulties given the ability of the Attorney-General to rely
on 'criminal intelligence' which a court could not provide to the applicant. See Totani (2010) 242
CLR I at [195] (Hayne J).
See the authorities referred to in footnote 133 above. As Isaacs J pointed out in Williamson v Ah On
{1926) 39 CLR 95 at 108, 'It is one thing to say, for instance, in an Act of Parliament, that a man
found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite
another to say that he shall be deemed to have stolen them unless he personally proves that he got
them honestly.'
Document No: 5134124
-27follows that, unlike s 14(1) of the SOC Act, s 60A(l) cannot be characterised as
requiring the court 'to act at the behest of the executive. 153
115.
For at least those reasons, the Plaintiffs submission that s 60A requires the courts
to 'act as an instrument of the executive' should be rejected.
116.
Furthermore, laws proscribing organisations, or restricting their activities or the
activities of their members have a long history in Australia and in other countries of
the British Commonwealth. 154 For example, s 1(1) of the Prevention a/Terrorism
(Temporary Provisions) Act 1974 (UK) ('the 1974 Act') provided that a person
who belonged to, supported, or arranged or addressed meetings of a 'proscribed
organisation' was guilty of an offence. 'Proscribed organisations' were set out in
Schedule 1 to the Act. It was a defence for a person to show that the organisation
was not proscribed at the time he became a member, and that he had not taken part
in any of its activities since its proscription (s 1(6)). Section 2 made it an offence
for any person, in a public place, to wear items of dress or wear, carry or display
articles which suggested he was a member or supporter of a proscribed
organisation.
117.
Similarly, the current Terrorism Act 2000 (UK) makes it an offence to be a member
of, invite support for or wear the uniform of, a proscribed organisation (see ss 1113). Proscribed organisations are those set out in Schedule 2 to the Act.
118.
A range of provisions of the Criminal Code Act 1995 (Cth), Schedule, Chapter 5,
Part 5.2, Division 102 operate by reference to 'terrorist organisations' specified in
the regulations made under that Act (sees 102.1). Amongst other things, it is an
offence under the Act for a person to associate on more than two occasions with
another person who is a member of, or who promotes the activities of, a terrorist
organisation specified in the regulations (s 102.8). It is also an offence for the
person to recruit another person to join, or participate in the activities of, a terrorist
organisation (s 102.4).
119.
In Thomas v Mowbra/ 55 the High Court upheld the validity of s 104.4 of the
Commonwealth Criminal Code. That section allows a court to make a control order
in respect of a person if (amongst other things) it is satisfied on the balance of
probabilities that the person has provided training to, or received training from, a
listed terrorist organisation. Mr Thomas, the plaintiff in that case, had received
training from AI Qa'ida, a listed organisation. 156 No constitutional difficulty arose
from the fact that, in this aspect of its application, s 104.4 applied only to persons
who were members of organisations selected by the Executive.
!53
Totani (2010) 242 CLR I at [149] (Gummow J).
There is also a long history of criminal laws applying only to particular groups. For example, the
Act 57 Geo III c 19 was enacted 'for the more effectually preventing Seditious Meetings and
Assemblies' and to suppress and prohibit 'certain Societies or Clubs calling themselves Spenceans
or Spencean Philanthropists' (s 24), cited by Hayne J in Totani (2010) 242 CLR I at [235].
(2007) 233 CLR 308.
Ibid at [38] (Gummow and Crennan JJ) and [178] (Hayne J).
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!54
!55
!56
Document No: 5134124
-28120.
Legislation in Canada and New Zealand also proscribes activities of identified
terrorist groups. For example, the Terrorism Suppression Act 2002 (NZ) provides
that it is an offence to make available property, financial or related services to an
entity knowing it is a designated terrorist entity (s 10), to recruit another person to
an organisation knowing it is a designated terrorist entity (s 12), and to participate
in a group knowing it is, or being reckless as to whether it is, a designated terrorist
entity (s 13). A 'designated terrorist entity' is an entity designated as such by the
Prime Minister under the Act (ss 20, 22).
121.
Similar provision is made in the Criminal Code 1985 (Can). Section 83.18
prohibits participating in or contributing to the activity of a terrorist group. Section
83.21 prohibits instructing people to carry out an activity for a terrorist group.
'Terrorist group' is defined to mean a person or group that has as one of its
purposes or activities the facilitation or canying out of any terrorist activity, or a
person or group identified in a regulation made under the Code. 157
122.
The commonness of such laws suggests that they do not necessarily impair the
institutional integrity of the courts that enforce them.
123.
The principle in Kable prevents State legislatures from validly enacting laws which
deprive courts of their 'institutional integrity', one aspect of which is a court's
independence and impartiality. 158
124.
Section 60A does not impair a court's independence and impartiality. Like a court
applying the VLAD Act, a court applying s 60A must conduct its proceedings in
open court; it must afford procedural fairness and follow the ordinary rules of
criminal procedure; and it would exercise judicial power by applying the law to the
facts. 159 There is nothing novel nor constitutionally objectionable about certain
elements of the offence being defined by reference to regulations, 160 or about the
burden of proving a defence, on the balance of probabilities, being placed on the
defendant.
157
InR v Khawaja [2012]3 SCR 555, the Supreme Court of Canada dismissed an appeal in which
these provisions were alleged to be invalid for infringing s 7 of the Canadian Charter ofRights and
Freedoms. Section 7 provides that "Everyone has the right to life, liberty and security ofthe person
and the right not to be deprived thereof except in accordance with the principles of fundamental
justice." That provision invalidates laws which restrict liberty more than is necessary to accomplish
their goal.
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [63] (Gummow,
Hayne and CrennanJJ). See also Wainohu v New South Wales (2011) 243 CLR 181 at [44]
(French CJ and Kiefel J); Emmerson (2014) 88 ALJR 522 at [44] (French CJ, Hayne, Crennan,
Kiefel, Bell and Keane JJ).
See paragraph [61] above and the authorities there cited.
See, for example, ss 9A-9D of the Drugs Misuse Act 1986 (Qld), which respectively provide that
possessing, supplying, producing and trafficking in a 'relevant substance or thing' is an offence.
'Relevant substance or thing' is defined by reference to schedules to the Drugs Misuse Regulation
1987. See also Customs Act 1901 (Cth), s 233(l)(b) (making it an offence to import 'prohibited
imports', which are defined by regulation).
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158
159
160
Document No: 5134124
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125.
The plaintiff's challenge to s 60A should be dismissed.
(iii)
Criminal Code, s 60B(l) and s 60C
126.
For the same reasons, the plaintiffs challenge to the validity of ss 60B(1) and
s 60C of the Criminal Code should fail.
127.
Section 60B(1) makes it an offence for a person who is a participant in a criminal
organisation to enter, or attempt to enter, a prescribed place.
128.
'Prescribed place' means a place declared under a regulation to be a prescribed
place (s 60B(4)). Section 3 of the Criminal Code (Criminal Organisations)
Regulation 2013 sets out a list of prescribed places.
129.
Section 60C makes it an offence for a participant in a criminal organisation to
recruit, or attempt to recruit, anyone to become a participant in a criminal
organisation.
130.
It is a defence to a charge under both of the above provisions for the defendant to
prove, on the balance of probabilities, that the criminal organisation is not an
organisation that has, as one of its purposes, the purpose of engaging in, or
conspiring to engage in, criminal activity (see s 60B(3) and s 60C(2)).
131.
The existence of the defence in s 60B(3) and s 60C(2) is again essential to a proper
understanding of each offence provision. For example, there could be no
constitutional objection to a provision which prohibited persons from recruiting
others to an organisation proved by the prosecution to have the purpose of engage
in, or conspiring to engage in, criminal activity. As discussed above, the fact that
the burden of proof has been reversed in relation to this element of the offence in
s 60C does not give rise to any objection to the legislation based on the Kable
principle. 161
132.
Likes 60A, ss 60B(l) and 60C create offences to be tried by courts in the ordinary
way. They therefore do not render courts instruments of the executive or the
legislature. The plaintiff's challenge to them should be dismissed.
(iv)
Criminal Code, s 60B(2)
133.
The plaintiff lacks standing to challenge the validity of s 60B(2) and in any event,
the relief he seeks in respect of that provision would be hypothetical.
134.
Section 60B(2) makes an offence for a person who is a participant in a criminal
organisation to attend, or attempt to attend, a prescribed event. The defence in
s 60B(3) also applies to the offence ins 60B(2).
161
See footnote 133 above.
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-30135.
A 'prescribed event' is an event declared under a regulation to be a 'prescribed
event' (s 60B(4)). No events have yet been prescribed. It follows that s 60B(2)
does not impose any norm of behaviour on the plaintiff or anyone else, and does
not challenge the plaintiffs 'freedom of action' .162
136.
In those circumstances, the plaintiff's challenge to the validity s 60B(2) does not
give rise to a real and immediate controversy about 'rights, duties or liability which
will, by the application of judicial power, be quelled' . 163 To determine the
plaintiffs claim in respect of s 60B(2) would be 'to determine abstract questions of
law without the right or duty of any body or person being involved' . 164
137.
In any event, s 60B(2) is valid for the reasons given in relation to s 60A, above.
(v)
Liquor Act offence provisions
138.
Sections 173EB-173ED of the Liquor Act 1992 are amongst the 'impugned
provisions' in respect of which the Plaintiff seeks relief in the Further Amended
Special Case. 165 The Plaintiff baldly "challenges the constitutionally validity of
these legislative provisions", 166 but, respectfully, no coherent basis for that
challenge is developed.
139.
The Plaintiffs submissions say nothing about the Liquor Act provisions
specifically. To the extent that they challenge the creation of criminal offences that
apply to or in relation to participants in criminal organisations generally, 167 the
Defendant repeats its submissions in relation to the Criminal Code, ss 60A-60C
above.
140.
To the extent that the Liquor Act provisions are attacked on Kable grounds, the
Defendant submits simply that there is nothing in the challenged provisions, and
certainly nothing that is identified in the Plaintiff's submissions, that:
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confer[s] upon ... a court a power or function which substantially impairs the
court's institutional integrity, and which is therefore incompatible with the court's
role as a repository of federal jurisdiction. 168
141.
Sections 173EB-173ED simply create offences of general application. Section
173EB makes it an offence for a licensee or manager oflicensed premises, or an
employee or agent working at the premises, to knowingly allow a person wearing a
162
Plaintiffs submissions at [78].
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 458-459
(Hayne J).
In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 267.
Plaintiff's submissions at [12](d), footnote 13.
Plaintiff's submissions at [44]-[45].
Plaintiff's submissions at [46]-[49], [63]-[71].
Emmerson (2014) 88 ALJR 522 at 533 [40].
40
163
164
165
166
167
168
Document No: 5134124
-31prohibited item to enter or remain in the premises. Section 173EC prohibits a
person wearing or carrying a prohibited item from entering or remaining in licensed
premises. Section 173ED requires a person wearing or carrying a prohibited item
to leave licensed premises immediately if required to do so by the licensee, an
employee or agent, or a policy officer. Those offences would be investigated,
prosecuted and adjudicated in the ordinary way.
142.
The aim of these provisions was to prevent people wearing or carrying clothing,
jewellery and accessories that the legislature apprehended could be used to
intimidate patrons of licensed premises, or which might identify members to rival
clubs and thereby provoke criminal conduct. In other jurisdictions, such prohibited
items have been associated with intimidation and criminal activity. 169 Provisions
aimed at protecting the civility oflicensed premises have a long provenance. For
example, s 10 of the Habitual Criminals Act 1869 (UK) provided that it was an
offence for keepers of lodging-houses, beerhouses, public houses or other places
where excisable liquors were sold, knowingly to permit thieves and reputed thieves
to meet or assemble therein. Similarly, s 22 of the Police Offences Act 1884 (NZ)
provided that it was an offence for any person, who kept any house or public resort
wherein liquors were sold or consumed, knowingly to permit prostitutes or persons
of notoriously bad character to meet and remain therein. 170
143.
It is true that the offences of general application in ss I 73EB to 173ED apply in
relation to the wearing or carrying of 'prohibited items' which is defined in
s 173EA by reference to 'declared criminal organisation'. A 'declared criminal
organisation' is a criminal organisation mentioned in the Criminal Code, s 1,
definition criminal organisation, para (c); that is, one prescribed by regulation.
144.
However, the power or function which ss 173EB-173ED confer on a court hearing
and determining an offence against any of those sections does not substantially
impair the court's institutional integrity. It does not require the court, in
appearance or reality, to act as an instrument of the executive. 171 It does not require
the court to do the executive's bidding.
145.
The plaintiffs challenge to the validity of the Liquor Act provisions should be
dismissed.
F.
The Bail Act
(i)
Purpose and operation of ss 16(3A) to (3D) of the Bail Act
146.
The impugned provisions of the Bail Act need to be understood in the context of s 9
and the rest of s 16 of the Bail Act.
169
See Further Amended Special Case, paragraph [9]; Amended Special Case Book 52-53.
Compare also the provisions of the Terrorism Act 2000 (UK) which prohibit wearing the uniform of
a proscribed organisation, referred to in paragraph [116] above.
Plaintiff's submissions at [48](b), [63]-[71].
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170
171
Document No: 5134124
-32147.
Section 9 of the Bail Act creates a presumption in favour of granting bail. By
s 16(1), however, the presumption is rebutted if the court is satisfied that there is an
'unacceptable risk' of certain matters, including that the defendant if released on
bail would fail to appear and surrender into custody.
148.
Subsection 16(2) provides that in determining whether there is an unacceptable
risk, the court may have regard to all matters that appear relevant. Without limiting
those matters, however, the provision sets out specific matters to which the court
may have regard. These include the nature and seriousness of the offence as well as
the character, antecedents, associations, home environment, employment and
background of the defendant.
149.
Subsection 16(3) of the Bail Act provides that if the defendant is charged with
certain offences (including offences under the Bail Act), the court must refuse to
grant bail unless the defendant shows cause why the defendant's detention in
custody is not justified. In effect, the defendant has the burden of demonstrating
that there is not an unacceptable risk of the matters in s 16(1 ).
150.
Subsection 16(3A) of the Bail Act operates in a similar way. It provides that where
the defendant is charged with an offence and it is alleged that the defendant is, or
has at any time been, a participant in a criminal organisation, 172 bail must be
refused, unless:
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(a)
the defendant can show cause why his/her detention in custody is not
justified, thus conferring on the court a plenary discretion to grant bail
against the presumption, if so persuaded; 173 or
(b)
the defendant proves that at the time of his/her alleged participation in the
criminal organisation, the organisation did not have as one of its purposes,
the purpose of engaging in criminal activity. 174
151.
Section 16(3C) provides that for subsection (3A), it does not matter whether the
offence is indictable, summary or regulatory; whether the defendant is alleged to
have been a participant in the criminal organisation when the offence was
committed; or whether there is no link between the alleged participation in the
criminal organisation and the offence charged. It therefore puts beyond doubt that
s 16(3A) applies regardless of those particular circumstances. 175 It does not,
however, have a wider operation.
172
See Bail Act, s 6. The term 'criminal organisation' is defined by reference to Schedule I of the
Criminal Code, incorporating the 'Hells Angels' by reference to s 2 of the Criminal Code (Criminal
Organisations) Regulation 2013.
Bail Act, s 16(3A)(a).
Bail Act, s !6(3D).
Explanatory Note to the Criminal Law (Criminal Organisations Disruption) and other Legislation
Amendment Bill 2013, p 16.
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173
174
175
Document No: 5134124
-33(ii)
Plaintiff lacks standing
152.
The Plaintiff contends that ss 16(3A) to (3D) of the Bail Act are invalid because
they require a court to act in breach of the notion of equality before the law and
they render the courts instruments of the executive or legislature.
153.
However, the Plaintiff does not have standing to challenge those provisions. He has
not pleaded that he has been charged with any offence or that he has engaged in any
conduct that would render him liable to prosecution for an offence (whether
summary, indictable or regulatory). The impugned provisions of the Bail Act
therefore do not apply to him; indeed, as matters presently stand it may be expected
that they will never apply to him. In these circumstances, the Plaintiff cannot claim
that its provisions affect him in his person or property. 176 It follows that he lacks
standing to obtain a declaration that s 16(3A) and related provisions are invalid.
154.
Alternatively, the relief that the Plaintiff seeks would involve the Court in
answering a hypothetical question. As outlined above, 177 whether relief is
hypothetical may involve matters of degree. In this case, however, there is nothing
real or immediate about the answer that he seeks, because the Bail Act does not
apply to him and it is possible that it never will. In these circumstances, the relief
that he seeks should be refused.
(iii)
Impugned provisions do not infringe the Kable principle
155.
Even if (contrary to the submissions above) the Plaintiff has standing and the relief
that he seeks is not hypothetical, his challenge should be rejected. As outlined
above, 178 the Constitution contains no general principle of legal equality. Chapter
III of the Constitution, moreover, does not entrench a principle of 'equal justice'
that would invalidate Commonwealth or State laws. 179 The Plaintiffs challenge on
those bases therefore cannot succeed.
156.
Nor do s 16(3A) and associated provisions render the court an instrument of the
executive or the legislature. Chapter III does not prohibit laws that merely regulate
the exercise of a court's powers, including the power to grant bail. In Chau v
Director of Public Prosecutions, for example, the New South Wales Court of
Appeal rejected an argument that Chapter III was inconsistent with provisions
creating a presumption against bail for certain drug offences. 18 Chief Justice
Gleeson explained: 181
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A law conferring a discretion on a court can determine the factors to which the court
must have regard in exercising the discretion, or the relative weight to be given to
176
177
178
179
180
181
at 127-128, 137-138.
See paragraph [40] above.
See paragraphs [44] to [4 7] above.
See paragraphs [48] to [52] above.
(1995) 37 NSWLR 639.
(1995) 37 NSWLR 639 at 647 (Gleeson CJ). See also at 657 (Kirby P).
CfCroome (1997) 191 CLR 119
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-34different factors, or it can provide that there is a presumption that the discretion
should be exercised in a particular way, save in exceptional circumstances.
157.
In Baker v The Queen, 182 this Court upheld the validity of a provision that
prevented the New South Wales Supreme Court from determining a minimum term
and an additional term for a small group of prisoners 183 unless that Court was
satisfied that there were 'special reasons' for doing so. Both Chau and Baker
demonstrate that regulation of a court's powers will not, without more, infringe any
prohibition in Chapter III.
158.
Subsection 16(3A) shifts the burden of demonstrating that bail should be granted to
a person in specific circumstances. 184 It does not, however, alter any aspect of the
ordinary judicial process, such as the requirement to afford procedural fairness or
the open court principle. Furthermore, neither it nor s 16(3C) restricts the
considerations to which the court may have regard in deciding whether to grant
bail. Put differently, the court remains free to consider all the factors that appear
relevant to the existence of an unacceptable risk and to grant bail if satisfied that
the risk would not arise. 185 In these respects, s 16(3A) operates in the same manner
ass 16(3), a provision that the Plaintiff does not challenge.
159.
Given the limited operation of s 16(3A) to (3D) of the Bail Act, those provisions
are properly characterised as doing no more than regulating the discretion of the
court to grant bail.
160.
Accordingly, the Plaintiffs challenge based on Kable grounds should be dismissed.
G.
Conclusion
161.
The Defendant submits that the questions in the further amended special case
should be answered as follows:
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1. Does the plaintiff have standing to seek a declaration that any, and which, of the
provisions referred to in the schedule (other than Criminal Code (Qld), sections
60A, 60B(1) and 60C, and Liquor Act 1992 (Qld), sections 173EB to 173ED) is
invalid?
No.
182
40
183
184
185
(2004) 223 CLR 513.
These were prisoners who were subject to a 'non-release recommendation'. There were only 10
such prisoners, and their identity was widely !mown: see (2004) 223 CLR 513 at [8] (Gleeson CJ),
[50] (McHugh, Gummow, Hayne and Heydon JJ), [165] (Callinan J).
It is significant that there is no common law right to be at liberty on bail pending the resolution of a
charge: see Chau v Director ofPublic Prosecutions (1995) 37 NSWLR 639 at 646 (Gleeson CJ).
There are many examples where the Supreme Court of Queensland has considered such factors and
granted bail despite s 16(3A): see Carew v The Office ofthe Director ofPublic Prosecutions [2014]
QSC 001; Lansdowne v The Director ofPublic Prosecutions [2014] QSC 002; Re Halilovic [2014]
QSC 005; Re Alajbegovic [2014] QSC 006; Re Van Rooijen [2014] QSC 116; Re Bloomfield [2014]
QSC 115.
Document No: 5134124
-352. Is the relief which the plaintiff seeks in answer to question 3 (other than the
relief sought in relation to the Criminal Code (Qld), sections 60A, 60B(1) and
60C, and Liquor Act 1992 (Qld), sections 173EB to 173ED) hypothetical?
Yes.
3. Is any, and which, of the provisions referred to in the Schedule invalid on the
ground that it infringes the principle of Kable v Director ofPublic Prosecutions
(NSW) (1996) 189 CLR 51?
10
None of the provisions is invalid.
4. Who should pay the costs of the special case?
The Plaintiff.
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VI.
ESTIMATE OF TIME REQUIRED FOR ORAL ARGUMENT
162.
The Defendant estimates that 3 hours should be sufficient to present its oral
argument.
Dated: 8 August 2014
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I
PETER DUNNING QC
Solicitor-General for Queensland
Tel: (07) 3218 0630
Fax: (07) 3218 0632
Email: [email protected]
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v,
ALAN MACSPORRAN QC
More Chambers
Tel: (07) 3236 2719
Fax: (07) 3236 2720
Email: [email protected]
Document No: 5134124
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~ 0..d- --vGIM DEL VILLAR
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Murray Gleeson Chambers
Tel: (07)3175 4650
Fax: (07) 3175 4666
Email: [email protected]
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Callinan Chambers
Tel: (07) 3218 0691
Fax: (07) 3218 0699
Email: [email protected]
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Document No: 5134124